1
Exhibit 2.2
General Assignment and Assumption Agreement
between
MRV COMMUNICATIONS, INC.
and
LUMINENT, INC.
______________, 2000
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I CONTRIBUTION AND ASSUMPTION....................................................1
Section 1.1 Contribution of Capital Stock, Assets and Assumption of
Liabilities............................................................1
Section 1.2 Luminent Assets........................................................2
Section 1.3 Excluded Assets........................................................3
Section 1.4 Luminent Liabilities...................................................3
Section 1.5 Methods of Transfer and Assumption.....................................5
Section 1.6 Governmental Approvals and Consents....................................6
Section 1.7 Nonrecurring Costs and Expenses........................................7
Section 1.8 Novation of Assumed Luminent Liabilities...............................7
ARTICLE II LITIGATION....................................................................7
Section 2.1 Allocation.............................................................7
Section 2.2 Cooperation............................................................8
ARTICLE III MISCELLANEOUS................................................................8
Section 3.1 Entire Agreement.......................................................8
Section 3.2 Governing Law..........................................................9
Section 3.3 Notices................................................................9
Section 3.4 Parties in Interest....................................................9
Section 3.5 Counterparts...........................................................9
Section 3.6 Assignment.............................................................9
Section 3.7 Severability...........................................................9
Section 3.8 Failure or Indulgence Not Waiver; Remedies Cumulative.................10
Section 3.9 Amendment.............................................................10
Section 3.10 Authority.............................................................10
Section 3.11 Interpretation........................................................10
Section 3.12 Conflicting Agreements................................................10
ARTICLE IV DEFINITIONS..................................................................10
Section 4.1 MRV Group.............................................................10
i
3
TABLE OF CONTENTS (CONT'D)
PAGE
----
Section 4.2 Action................................................................10
Section 4.3 Affiliated Company....................................................11
Section 4.4 Ancillary Agreement...................................................11
Section 4.5 Assets................................................................11
Section 4.6 Contracts.............................................................12
Section 4.7 Delayed Transfer Assets...............................................12
Section 4.8 Distribution..........................................................12
Section 4.9 Distribution Date.....................................................12
Section 4.10 Governmental Approvals................................................12
Section 4.11 Governmental Authority................................................12
Section 4.12 Indemnification and Insurance Matters Agreement.......................12
Section 4.13 Insurance Policies....................................................12
Section 4.14 Insured Luminent Liabilities..........................................12
Section 4.15 Intellectual Property.................................................13
Section 4.16 IPO Registration Statement............................................13
Section 4.17 Liabilities...........................................................13
Section 4.18 OFLs..................................................................13
Section 4.19 Luminent Balance Sheet................................................13
Section 4.20 Luminent Business.....................................................14
Section 4.21 Luminent Contingent Gain..............................................14
Section 4.22 Luminent Contingent Liability.........................................14
Section 4.23 Luminent Contracts....................................................15
Section 4.24 Luminent Group........................................................15
Section 4.25 Luminent Pro Forma Balance Sheet......................................15
Section 4.26 Person................................................................15
Section 4.27 Retained Payables.....................................................15
Section 4.28 Retained Receivables..................................................16
Section 4.29 Security Interest.....................................................16
Section 4.30 Separation............................................................16
ii
4
TABLE OF CONTENTS (CONT'D)
PAGE
----
Section 4.31 Separation Agreement..................................................16
Section 4.32 Separation Date.......................................................16
Section 4.33 Subsidiary............................................................16
Section 4.34 Taxes.................................................................16
Schedule 1.1(c) Delayed Transfer Assets and Liabilities.................................19
Schedule 1.2(a)(xii) Specific Luminent Assets to be Transferred.........................20
Schedule 1.2(b)(i) Excluded Assets......................................................21
Schedule 1.3(a)(vi) Divested Businesses Which Contain Liabilities
to be Transferred to Luminent...........................................................22
Schedule 1.3(a)(vii) Specific Luminent Liabilities......................................23
Schedule 1.3(b)(i) Excluded Liabilities.................................................24
iii
5
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This General Assignment and Assumption Agreement (this "Agreement") is
entered into on July ___, 2000 between MRV Communications, Inc., a Delaware
corporation ("MRV"), and Luminent, Inc., a Delaware corporation ("Luminent").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in Article IV hereof.
RECITALS
WHEREAS, MRV hereby and by certain other instruments of even date
herewith transfers or will transfer to Luminent effective as of the Separation
Date, certain assets of the Luminent Business owned by MRV in accordance with
the Master Separation and Distribution Agreement dated as of _______, 2000
between the MRV and Luminent (the "Separation Agreement").
WHEREAS, it is further intended between the parties that MRV transfers
or will transfer to Luminent, effective as of the Separation Date all of the
capital stock of: (i) Fiber Optics Communications, Inc. ("FOCI"), (ii) Optronics
International Corporation, (iii) Quantum Optech, Inc., and (iv) Optical
Access-Asia, Inc. ("OAA") as provided for in this Agreement, the Separation
Agreement or the other instruments and agreements provided for in the Separation
Agreement.
WHEREAS, it is further intended between the parties that Luminent assume
certain of the liabilities related to the Luminent Business currently owed by
MRV, as provided in this Agreement, the Separation Agreement or the other
agreements and instruments provided for in the Separation Agreement.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
CONTRIBUTION AND ASSUMPTION
Section 1.1 Contribution of Capital Stock, Assets and Assumption of Liabilities.
(a) Transfer of Assets. Effective on the Separation Date, MRV hereby
assigns, transfers, conveys and delivers (or will cause any applicable
Subsidiary to assign, transfer, convey and deliver) to Luminent, or to any
applicable Luminent Subsidiary, and Luminent hereby accepts from MRV, or
applicable MRV Subsidiary, and agrees to cause its applicable Luminent
Subsidiary to accept, all of MRV's and its applicable Subsidiary's respective
right, title and interest in the Luminent Assets, other than the Delayed
Transfer Assets; provided, however, that any Luminent Assets that are
specifically assigned or transferred pursuant to another Ancillary Agreement
shall not be assigned or transferred pursuant to this Section 1.1(a).
(b) Assumption of Liabilities. Effective on the Separation Date,
Luminent hereby assumes and agrees faithfully to perform and fulfill (or will
cause any applicable Subsidiary to assume, perform and fulfill), all the
Luminent Liabilities owed by MRV, other than the Delayed Transfer Liabilities,
in accordance with their respective terms. Thereafter, Luminent shall be
1
6
responsible (or will cause any applicable Subsidiary to be responsible) for all
Luminent Liabilities held by MRV, regardless of when or where such Liabilities
arose or arise, or whether the facts on which they are based occurred prior to,
on or after the date hereof, regardless of where or against whom such
Liabilities are asserted or determined (including any Luminent Liabilities
arising out of claims made by MRV's or Luminent's respective directors,
officers, consultants, independent contractors, employees or agents against any
member of the MRV Group or the Luminent Group) or whether asserted or determined
prior to the date hereof, and regardless of whether arising from or alleged to
arise from negligence, recklessness, violation of law, fraud or
misrepresentation by any member of the MRV Group or the Luminent Group or any of
their respective directors, officers, employees or agents.
(c) Delayed Transfer Assets and Liabilities. Each of the parties hereto
agrees that the Delayed Transfer Assets will be assigned, transferred, conveyed
and delivered, and the Delayed Transfer Liabilities will be assumed, in
accordance with the terms of the agreements that provide for such assignment,
transfer, conveyance and delivery, or such assumption, after the date of this
Agreement or as otherwise set forth on Schedule 1.1(c). Following such
assignment, transfer, conveyance and delivery of any Delayed Transfer Asset, or
the assumption of any Delayed Transfer Liability, the applicable Delayed
Transfer Asset or Delayed Transfer Liability shall be treated for all purposes
of this Agreement and the other Ancillary Agreements as a Luminent Asset or as a
Luminent Liability, as the case may be.
(d) Misallocated Assets. In the event that at any time or from time to
time (whether prior to, on or after the Separation Date), any party hereto (or
any member of such party's respective Group), shall receive or otherwise possess
any Asset that is allocated to any other Person pursuant to this Agreement or
any Ancillary Agreement, such party shall promptly transfer, or cause to be
transferred, such Asset to the Person so entitled thereto. Prior to any such
transfer, the Person receiving or possessing such Asset shall hold such Asset in
trust for any such other Person.
(e) Transfer of Capital Stock. Effective on the Separation Date, MRV
hereby assigns, transfers, conveys and delivers (or will cause any applicable
Subsidiary to assign, transfer, convey and deliver) to Luminent, and Luminent
hereby accepts from MRV, or the applicable MRV Subsidiary, all of MRV's and its
applicable Subsidiary's right, title and interest in the capital stock FOCI,
QOI, OIC and OAA owned by MRV, or its Subsidiaries, as of even date herewith.
Section 1.2 Luminent Assets.
(a) Included Assets. For purposes of this Agreement, "Luminent Assets"
shall mean (without duplication) the following Assets, except as otherwise
provided for in any other Ancillary Agreement or other express agreement of the
parties:
(i) all Assets reflected in the Luminent Balance Sheet, subject
to any dispositions of such Assets subsequent to the date of the Luminent
Balance Sheet;
(ii) all Assets that have been written off, expensed or fully
depreciated that, had they not been written off, expensed or fully depreciated,
would have been reflected in the Luminent Balance Sheet in accordance with the
principles and accounting policies under which the Luminent Balance Sheet was
prepared;
2
7
(iii) all Assets acquired by MRV or its Subsidiaries after the
date of the Luminent Balance Sheet that would be reflected in the consolidated
balance sheet of Luminent as of the Separation Date if such consolidated balance
sheet was prepared using the same principles and accounting policies under which
the Luminent Balance Sheet was prepared, including any business transaction
processing that may occur on MRV systems on behalf of Luminent during the period
between separation date to initialization of the processing systems required by
Luminent;
(iv) all Assets that are used primarily by the Luminent Business
at the Separation Date but are not reflected in the Luminent Balance Sheet due
to mistake or omission; provided, however, that no Asset shall be a Luminent
Asset requiring any transfer by MRV unless Luminent or its Subsidiaries have, on
or before the first anniversary of the Distribution Date, given MRV or its
Subsidiaries notice that such Asset is a Luminent Asset;
(v) all Luminent Contingent Gains;
(vi) all Luminent Contracts;
(vii) to the extent permitted by law and subject to the
Indemnification and Insurance Matters Agreement, all rights of any member of the
Luminent Group under any of MRV's Insurance Policies or other insurance policies
issued by Persons unaffiliated with MRV; and
(viii) all furniture, fixtures and equipment used primarily by
employees of MRV who will become employees of Luminent after the IPO referenced
herein;
(ix) the capital stock of FOCI, OIC, QOI and OAA; and
(x) all Assets that are expressly contemplated by this Agreement,
the Separation Agreement or any other Ancillary Agreement (or Schedule
1.2(a)(viii) or any other Schedule hereto or thereto) as Assets to be
transferred to Luminent or any other member of the Luminent Group.
Section 1.3 Excluded Assets. For the purposes of this Agreement, "Excluded
Assets" shall mean:
(a) the Assets listed or described on Schedule 1.2(b)(i);
(b) the Retained Receivables; and
(c) any Assets that are expressly contemplated by the Separation
Agreement, this Agreement or any other Ancillary Agreement (or the Schedules
hereto or thereto) as Assets to be retained by MRV or any other member of the
MRV Group.
Section 1.4 Luminent Liabilities.
(a) Included Liabilities. For the purposes of this Agreement, "Luminent
Liabilities" shall mean (without duplication) the following Liabilities, except
as otherwise provided for in any other Ancillary Agreement or other express
agreement of the parties:
(i) all Liabilities reflected in the Luminent Balance Sheet,
subject to any discharge of such Liabilities subsequent to the date of the
Luminent Balance Sheet;
(ii) all Liabilities of MRV or its Subsidiaries that arise after
the date of the Luminent Balance Sheet that would be reflected in the
consolidated balance sheet of Luminent as
3
8
of the Separation Date if such consolidated balance sheet was prepared using the
same principles and accounting policies under which the Luminent Balance Sheet
was prepared;
(iii) all Liabilities that are related primarily to the Luminent
Business at the Separation Date but are not reflected in the Luminent Balance
Sheet due to mistake or unintentional omission; provided, however, that no
Liability shall be considered as a Luminent Liability unless MRV or its
Subsidiaries, on or before the first anniversary of the Distribution Date, has
given Luminent or its Subsidiaries notice that such Liability is a Luminent
Liability;
(iv) all Luminent Contingent Liabilities;
(v) all Liabilities (other than Liabilities for Taxes), whether
arising before, on or after the Separation Date, primarily relating to, arising
out of or resulting from:
(1) the operation of the Luminent Business, as conducted
at any time prior to, on or after the Separation Date (including any Liability
relating to, arising out of or resulting from any act or failure to act by any
director, officer, employee, agent or representative (whether or not such act or
failure to act is or was within such Person's authority));
(2) the operation of any business conducted by any member
of the Luminent Group at any time after the Separation Date (including any
Liability relating to, arising out of or resulting from any act or failure to
act by any director, officer, employee, agent or representative (whether or not
such act or failure to act is or was within such Person's authority)); or
(3) any Luminent Assets;
(vi) all Liabilities relating to, arising out of or resulting
from any of the terminated, divested or discontinued businesses and operations
listed or described on Schedule 1.3(a)(vi); and
(vii) all Liabilities that are expressly contemplated by this
Agreement, Schedule 1.3(a)(vii), the Separation Agreement or any other Ancillary
Agreement (or the Schedules hereto or thereto) as Liabilities to be assumed by
Luminent or any member of the Luminent Group, and all agreements, obligations
and Liabilities of any member of the Luminent Group under this Agreement or any
of the Ancillary Agreements.
Notwithstanding the foregoing, any Liabilities of any Subsidiaries of MRV listed
on Schedule 2.1(b) of the Separation Agreement shall not be assumed pursuant to
Section 1.2(a), and the Luminent Liabilities shall not include the Excluded
Liabilities referred to in Section 1.3(b) below.
(b) Excluded Liabilities. For the purposes of this Agreement, "Excluded
Liabilities" shall mean:
(i) all Liabilities listed or described in Schedule 1.3(b)(i);
(ii) the Retained Payables;
(iii) all Insured Luminent Liabilities;
(iv) all Liabilities that are expressly contemplated by this
Agreement, the Separation Agreement or any other Ancillary Agreement (or the
Schedules hereto or thereto) as Liabilities to be retained or assumed by MRV or
any other member of the MRV Group, and all
4
9
agreements and obligations of any member of the MRV Group under the Separation
Agreement, this Agreement or any other Ancillary Agreement.
Section 1.5 Methods of Transfer and Assumption.
(a) Terms of Other Ancillary Agreements Govern. The parties shall enter
into the other Ancillary Agreements, on or about the date of this Agreement. To
the extent that the transfer of any Luminent Asset or the assumption of any
Luminent Liability is expressly provided for by the terms of any other Ancillary
Agreement, the terms of such other Ancillary Agreement shall effect, and
determine the manner of, the transfer or assumption. It is the intent of the
parties that pursuant to Sections 1.1, 1.2 and 1.3, the transfer and assumption
of all other Luminent Assets and Luminent Liabilities, other than Delayed
Transfer Assets and Delayed Transfer Liabilities, shall be made effective as of
the Separation Date; provided, however, that circumstances in various
jurisdictions outside the United States may require the transfer of certain
Assets and the assumption of certain Liabilities to occur in such other manner
and at such other time as the parties shall agree, as provided in Section 1.4
hereof.
(b) Mistaken Assignments and Assumptions. In addition to those transfers
and assumptions accurately identified and designated by the parties to take
place but which the parties are not able to effect prior to the Separation Date,
there may exist (i) Assets that the parties discover were, contrary to the
agreements between the parties, by mistake or omission, transferred to Luminent
or (ii) Liabilities that the parties discover were, contrary to the agreements
between the parties, by mistake or omission, assumed by Luminent. The parties
shall cooperate in good faith to effect the transfer or re-transfer of such
Assets, and/or the assumption or re-assumption of such Liabilities, to or by the
appropriate party and shall not use the determination that remedial actions need
to be taken to alter the original intent of the parties hereto with respect to
the Assets to be transferred to or Liabilities to be assumed by Luminent. Each
party shall reimburse the other or make other financial adjustments (e.g.,
without limitation, cash reserves) or other adjustments to remedy any mistakes
or omissions relating to any of the Assets transferred hereby or any of the
Liabilities assumed hereby.
(c) Documents Relating to Other Transfers of Assets and Assumption of
Liabilities. In furtherance of the assignment, transfer and conveyance of
Luminent Assets and the assumption of Luminent Liabilities set forth in Sections
1.5(a) and (b) and certain other Ancillary Agreements, simultaneously with the
execution and delivery hereof or as promptly as practicable thereafter, (i) MRV
shall execute and deliver, and shall cause its Subsidiaries in accordance with
Local Transfer Agreements to execute and deliver, such bills of sale, stock
powers, certificates of title, assignments of contracts and other instruments of
transfer, conveyance and assignment as and to the extent necessary to evidence
the transfer, conveyance and assignment of all of MRV's and its Subsidiaries'
right, title and interest in and to the Luminent Assets to Luminent and (ii)
Luminent shall execute and deliver to MRV and its Subsidiaries such assumptions
of contracts and other instruments of assumption as and to the extent necessary
to evidence the valid and effective assumption of the Luminent Liabilities by
Luminent.
(d) Transfer Costs. Luminent shall bear all costs related to the
transfer of the Luminent Assets from MRV, or any MRV Subsidiary, to Luminent, or
any Luminent Subsidiary, and the assumption by Luminent, or its Subsidiary, of
al Luminent Liabilities, including, without limitation, any and all: (i) moving
expenses; (ii) transfer taxes; (iii) expenses incurred in
5
10
connection with any notices to customers, suppliers or other third parties
regarding such transfer of the Luminent Assets or assumption of the Luminent
Liabilities,; (iv) fees incurred in connection with the transfer of any
licenses, permits or franchises from MRV, or any MRV Subsidiary, to Luminent, or
any Luminent Subsidiary, or obtaining of any new, or re-issuances of existing,
licenses, permits or franchises in the name of Luminent; (v) fees and expenses
incurred in connection with the assignment or transfer of any contracts,
agreements or Intellectual Property from MRV, or any MRV Subsidiary, to Luminent
or any Luminent Subsidiary; (vi) any recording or other fees, taxes, charges or
assessments incurred in connection with the transfer of any real property from
MRV, or any MRV Subsidiary, to Luminent or any Luminent Subsidiary; and (vii)
costs incurred in connection with the transfer of any employee of MRV, or any
MRV Subsidiary, to Luminent, or any Luminent Subsidiary.
Section 1.6 Governmental Approvals and Consents
(a) Transfer In Violation of Laws. If and to the extent that the valid,
complete and perfected transfer assignment or novation to the Luminent Group of
any Luminent Assets and Luminent Liabilities (or from the Luminent Group of any
Non-Luminent Assets) would be a violation of applicable laws or require any
Consent or Governmental Approval in connection with the Separation, the IPO or
the Distribution, then, unless MRV shall otherwise determine, the transfer,
assignment or novation to or from the Luminent Group, as the case may be, of
such Luminent Assets or Non-Luminent Assets, respectively, shall be
automatically deemed deferred and any such purported transfer, assignment or
novation shall be null and void until such time as all legal impediments are
removed and/or such Consents or Governmental Approvals have been obtained.
Notwithstanding the foregoing, such Asset shall still be considered a Luminent
Asset for purposes of determining whether any Liability is a Luminent Liability;
provided, however, that if such covenants or Governmental Approvals have not
been obtained within six months of the Distribution Date, the parties will use
their reasonable commercial efforts to achieve an alternative solution in
accordance with the parties' intentions.
(b) Transfers Not Consummated Prior to Separation Date. If the transfer,
assignment or novation of any Assets intended to be transferred or assigned
hereunder, is not consummated prior to or on the Separation Date, whether as a
result of the provisions of Section 1.6(a) or for any other reason, then the
Person retaining such Asset shall thereafter hold such Asset for the use and
benefit, insofar as reasonably possible, of the Person entitled thereto (at the
expense of the Person entitled thereto). In addition, the Person retaining such
Asset shall take such other actions as may be reasonably requested by the Person
to whom such Asset is to be transferred in order to place such Person, insofar
as reasonably possible, in the same position as if such Asset had been
transferred as contemplated hereby and so that all the benefits and burdens
relating to such Luminent Assets (or such Non-Luminent Assets, as the case may
be), including possession, use, risk of loss, potential for gain, and dominion,
control and command over such Assets, are to inure from and after the Separation
Date to the Luminent Group (or the MRV Group, as the case may be). If and when
the Consents and/or Governmental Approvals, the absence of which caused the
deferral of transfer of any Asset pursuant to Section 1.6(a), are obtained, the
transfer of the applicable Asset shall be effected in accordance with the terms
of this Agreement and/or such other applicable Ancillary Agreement.
(c) Expenses. The Person retaining an Asset due to the deferral of the
transfer of such Asset shall not be obligated, in connection with the foregoing,
to expend any money unless the necessary funds are advanced by the Person
entitled to the Asset, other than reasonable out-
6
11
of-pocket expenses, attorneys' fees and recording or similar fees, all of which
shall be promptly reimbursed by the Person entitled to such Asset.
Section 1.7 Nonrecurring Costs and Expenses. Notwithstanding anything herein to
the contrary, any nonrecurring costs and expenses incurred by the parties hereto
to effect the transactions contemplated hereby which are not allocated pursuant
to the terms of the Separation Agreement, this Agreement or any other Ancillary
Agreement shall be the responsibility of the party which incurs such costs and
expenses.
Section 1.8 Novation of Assumed Luminent Liabilities
(a) Reasonable Commercial Efforts. Each of MRV and Luminent, at the
request of the other, shall use its reasonable commercial efforts to obtain, or
to cause to be obtained, any consent, substitution, approval or amendment
required to novate (including with respect to any federal government contract)
or assign all rights and obligations under agreements, leases, licenses and
other obligations or Liabilities (including Luminent OFLs) of any nature
whatsoever that constitute Luminent Liabilities or to obtain in writing the
unconditional release of all parties to such arrangements other than any member
of the Luminent Group, so that, in any such case, Luminent and its Subsidiaries
will be solely responsible for such Liabilities; provided, however, that neither
MRV, Luminent nor their Subsidiaries shall be obligated to pay any consideration
therefor to any third party from whom such consents, approvals, substitutions
and amendments are requested.
(b) Inability to Obtain Novation. If MRV or Luminent is unable to
obtain, or to cause to be obtained, any such required consent, approval,
release, substitution or amendment, the applicable member of the MRV Group shall
continue to be bound by such agreements, leases, licenses and other obligations
and, unless not permitted by law or the terms thereof (except to the extent
expressly set forth in this Agreement, the Separation Agreement or any other
Ancillary Agreement), Luminent shall, as agent or subcontractor for MRV or such
other Person, as the case may be, pay, perform and discharge fully, or cause to
be paid, transferred or discharged all the obligations or other Liabilities of
MRV or such other Person, as the case may be, thereunder from and after the date
hereof. MRV shall, without further consideration, pay and remit, or cause to be
paid or remitted, to Luminent or its appropriate Subsidiary promptly all money,
rights and other consideration received by it or any member of its respective
Group in respect of such performance (unless any such consideration is an
Excluded Asset). If and when any such consent, approval, release, substitution
or amendment shall be obtained or such agreement, lease, license or other rights
or obligations shall otherwise become assignable or able to be novated, MRV
shall thereafter assign, or cause to be assigned, all its rights, obligations
and other Liabilities thereunder or any rights or obligations of any member of
its respective Group to Luminent without payment of further consideration and
Luminent shall, without the payment of any further consideration, assume such
rights and obligations.
ARTICLE II
LITIGATION
Section 2.1 Allocation
(a) Litigation to Be Transferred to Luminent. Notwithstanding any
contrary provisions in the Indemnification and Insurance Matters Agreement, on
the Separation Date, the
7
12
responsibilities for management of the litigation identified in a litigation
disclosure letter (the "Litigation Disclosure Letter"), which will be delivered
by MRV to Luminent on the Separation Date, shall be transferred in their
entirety from MRV and its Subsidiaries to Luminent and its Subsidiaries. As of
the Separation Date and thereafter, Luminent shall manage the defense of such
litigation and shall cause its applicable Subsidiaries to do the same. MRV and
its Subsidiaries must first obtain the prior consent of Luminent or its
applicable Subsidiary for any action taken subsequent to the Separation Date in
connection with the litigation identified in the Litigation Disclosure Letter,
which consent cannot be unreasonably withheld or delayed. All other matters
relating to such litigation, including but not limited to indemnification for
such claims, shall be governed by the provisions of the Indemnification and
Insurance Matters Agreement.
(b) Litigation to be Defended by MRV at Luminent's Expense.
Notwithstanding any contrary provisions in the Indemnification and Insurance
Matters Agreement, MRV shall defend, and shall cause its applicable Subsidiaries
to defend, the litigation identified in the Litigation Disclosure Letter that is
not delivered by MRV to Luminent on the Separation Date. All other matters
relating to such litigation, including but not limited to indemnification for
such claims, shall be governed by the provisions of the Indemnification and
Insurance Matters Agreement.
Section 2.2 Cooperation. MRV and Luminent and their respective Subsidiaries
shall cooperate with each other in the defense of any litigation covered under
this Article II and afford to each other reasonable access upon reasonable
advance notice to witnesses and Information (other than Information protected
from disclosure by applicable privileges) that is reasonably required to defend
this litigation (as "Information" is defined pursuant to Section 5.4 of the
Separation Agreement). The foregoing agreement to cooperate includes, but is not
limited to, an obligation to provide access to qualified assistance to provide
information, witnesses and documents to respond to discovery requests in
specific lawsuits. In such cases, cooperation shall be timely so that the party
responding to discovery may meet all court-imposed deadlines. The party
requesting information shall reimburse the party providing information
consistent with the terms of Section 5.4 of the Separation Agreement. The
obligations set forth in this paragraph are more clearly defined in Section 5.4
of the Separation Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.1 Entire Agreement. This Agreement, the Separation Agreement, the
other Ancillary Agreements and the Exhibits and Schedules referenced or attached
hereto and thereto, constitutes the entire agreement between the parties with
respect to the subject matter hereof and shall supersede all prior written and
oral and all contemporaneous oral agreements and understandings with respect to
the subject matter hereof.
Section 3.2 Governing Law. This Agreement shall be construed in accordance with
and all Disputes hereunder shall be governed by the laws of the State of
California, excluding its conflict of law rules and the United Nations
Convention on Contracts for the International Sale of Goods. The Superior Court
of Los Angeles County and/or the United States District Court for the Southern
District of California shall have jurisdiction and venue over all Disputes
between the
8
13
parties that are permitted to be brought in a court of law pursuant to Section
5.9 of the Separation Agreement.
Section 3.3 Notices. Notices, offers, requests or other communications required
or permitted to be given by either party pursuant to the terms of this Agreement
shall be given in writing to the respective parties to the following addresses:
if to MRV:
MRV Communications, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Chief Executive Officer
Fax: (000) 000.0000
if to Luminent:
Luminent, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx,
Chief Executive Officer
Fax: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices may also be
sent by fax, confirmed by first class mail. All notices shall be deemed to have
been given and received on the earlier of actual delivery or three (3) days from
the date of postmark.
Section 3.4 Parties in Interest. This Agreement, including the Exhibits and
Schedules hereto, and the other documents referred to herein, shall be binding
upon and inure solely to the benefit of each party hereto and their legal
representatives and successors, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
Section 3.5 Counterparts. This Agreement, including the Exhibits and Schedules
hereto, and the other documents referred to herein, may be executed in
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
Section 3.6 Assignment . This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective legal representatives and
successors. This Agreement may not be assigned by any party hereto, without the
other party's express written consent.
Section 3.7 Severability. If any term or other provision of this Agreement or
the Exhibits or Schedules attached hereto is determined by a nonappealable
decision by a court, administrative agency or arbitrator to be invalid, illegal
or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties
9
14
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
fullest extent possible.
Section 3.8 Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or
delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
Agreement or the Schedules or Exhibits attached hereto are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
Section 3.9 Amendment. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
such agreement.
Section 3.10 Authority. Each of the parties hereto represents to the other that
(a) it has the corporate or other requisite power and authority to execute,
deliver and perform this Agreement, (b) the execution, delivery and performance
of this Agreement by it have been duly authorized by all necessary corporate or
other action, (c) it has duly and validly executed and delivered this Agreement,
and (d) this Agreement is a legal, valid and binding obligation, enforceable
against it in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and general equity principles.
Section 3.11 Interpretation. The headings contained in this Agreement, in any
Exhibit or Schedule hereto and in the table of contents to this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Schedule or
Exhibit but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
Section 3.12 Conflicting Agreements . In the event of conflict between this
Agreement and any other Ancillary Agreement or other agreement executed in
connection herewith, the provisions of such other agreement shall prevail (other
than as otherwise provided (i) herein and (ii) in the Separation Agreement).
ARTICLE IV
DEFINITIONS
Section 4.1 MRV Group. "MRV Group" means MRV, each Subsidiary and Affiliated
Company of MRV (other than any member of the Luminent Group) immediately after
the Separation Date, after giving effect to the Non-US Plan and each Person that
becomes a Subsidiary or Affiliate Company of MRV after the Separation Date.
Section 4.2 Action. "Action" means any demand, action, suit, countersuit,
arbitration, inquiry, proceeding or investigation by or before any federal,
state, local, foreign or international governmental authority or any arbitration
or mediation tribunal.
10
15
Section 4.3 Affiliated Company. "Affiliated Company" of any Person means a
Person that controls, is controlled by, or is under common control with such
Person. As used herein, "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such entity, whether through ownership of voting securities or other interests,
by contract or otherwise.
Section 4.4 Ancillary Agreement. "Ancillary Agreement" has the meaning set forth
in Section 2.1 of the Separation Agreement.
Section 4.5 Assets. "Assets" means assets, properties and rights (including
goodwill), wherever located (including in the possession of vendors or other
third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or financial
statements of any Person, including the following:
(a) all accounting and other books, records and files whether in paper,
microfilm, microfiche, computer tape or disc, magnetic tape or any other form;
(b) all apparatus, computers and other electronic dataprocessing
equipment, , automobiles, trucks, aircraft, rolling stock, vessels, motor
vehicles and other transportation equipment, special and general tools, test
devices, prototypes and models and other tangible personal property, but
excluding fixtures, machinery, equipment, furniture and office equipment;
(c) all inventories of materials, parts, raw materials, supplies,
work-in-process and finished goods and products;
(d) all interests in real property of whatever nature, including
easements, whether as owner, mortgagee or holder of a Security Interest, lessor,
sublessor, lessee, sublessee or otherwise;
(e) all interests in any capital stock or other equity interests of any
Subsidiary or any other Person; all bonds, notes, debentures or other securities
issued by any Subsidiary or any other Person; all loans, advances or other
extensions of credit or capital contributions to any Subsidiary or any other
Person; and all other investments in securities of any Person;
(f) all license agreements, leases of personal property, open purchase
orders for raw materials, supplies, parts or services, unfilled orders for the
manufacture and sale of products and other contracts, agreements or commitments;
(g) all deposits, letters of credit and performance and surety bonds;
(h) all written technical information, data, specifications, research
and development information, engineering drawings, operating and maintenance
manuals, and materials and analyses prepared by consultants and other third
parties;
(i) all Intellectual Property and licenses from third Persons granting
the right to use any Intellectual Property;
(j) all computer applications, programs and other software, including
operating software, network software, firmware, middleware, design software,
design tools, systems documentation and instructions;
(k) all cost information, sales and pricing data, customer prospect
lists, supplier records, customer and supplier lists, customer and vendor data,
correspondence and lists, product
11
16
literature, artwork, design, development and manufacturing files, vendor and
customer drawings, formulations and specifications, quality records and reports
and other books, records, studies, surveys, reports, plans and documents;
(l) all prepaid expenses, trade accounts and other accounts and notes
receivables;
(m) all rights under contracts or agreements, all claims or rights
against any Person arising from the ownership of any Asset, all rights in
connection with any bids or offers and all claims, choses in action or similar
rights, whether accrued or contingent;
(n) all rights under insurance policies and all rights in the nature of
insurance, indemnification or contribution;
(o) all licenses (including radio and similar licenses), permits,
approvals and authorizations which have been issued by any Governmental
Authority;
(p) cash or cash equivalents, bank accounts, lock boxes and other
deposit arrangements; and
(q) interest rate, currency, commodity or other swap, collar, cap or
other hedging or similar agreements or arrangements.
Section 4.6 Contracts. "Contracts" means any contract, agreement, lease,
license, sales order, purchase order, instrument or other commitment that is
binding on any Person or any part of its property under applicable law.
Section 4.7 Delayed Transfer Assets. "Delayed Transfer Assets" means any
Luminent Assets that are expressly provided in this Agreement, the Separation
Agreement or any other Ancillary Agreement to be transferred after the date of
this Agreement.
Section 4.8 Distribution. "Distribution" means MRV's pro rata distribution to
the holders of its common stock, $0.001 par value, following the IPO as provided
in the Separation Agreement, of all of the shares of Luminent common stock owned
by MRV.
Section 4.9 Distribution Date. "Distribution Date" has the meaning set forth in
Section 4.1 of the Separation Agreement.
Section 4.10 Governmental Approvals. "Governmental Approvals" means any notices,
reports or other filings to be made, or any consents, registrations, approvals,
permits or authorizations to be obtained from, any Governmental Authority.
Section 4.11 Governmental Authority. "Governmental Authority" means any federal,
state, local, foreign or international court, government, department,
commission, board, bureau, agency, official or other regulatory, administrative
or governmental authority.
Section 4.12 Indemnification and Insurance Matters Agreement. "Indemnification
and Insurance Matters Agreement" means the Indemnification and Insurance Matters
Agreement attached as Exhibit J to the Separation Agreement.
Section 4.13 Insurance Policies. "Insurance Policies" means insurance policies
pursuant to which a Person makes a true risk transfer to an insurer.
Section 4.14 Insured Luminent Liabilities. "Insured Luminent Liabilities" means
any Luminent Liability to the extent that (a) it is covered under the terms of
MRV's Insurance
12
17
Policies in effect prior to the Distribution Date and (b) Luminent is not a
named insured under, or otherwise entitled to the benefits of, such Insurance
Policies.
Section 4.15 Intellectual Property. "Intellectual Property" means all domestic
and foreign patents and patent applications, together with any continuations,
continuations-in-part or divisional applications thereof, and all patents
issuing thereon (including reissues, renewals and re-examinations of the
foregoing); design patents, invention disclosures; mask works; copyrights, and
copyright applications and registrations; Web addresses, trademarks, service
marks, trade names, and trade dress, in each case together with any applications
and registrations therefor and all appurtenant goodwill relating thereto; trade
secrets, commercial and technical information, know-how, proprietary or
confidential information, including engineering, production and other designs,
notebooks, processes, drawings, specifications, formulae, and technology;
computer and electronic data processing programs and software (object and source
code), data bases and documentation thereof; inventions (whether patented or
not); utility models; registered designs, certificates of invention and all
other intellectual property under the laws of any country throughout the world.
Section 4.16 IPO Registration Statement. "IPO Registration Statement" means the
registration statement on Form S-1 pursuant to the Securities Act of 1933, as
amended, to be filed with the Securities and Exchange Commission registering the
shares of common stock of Luminent to be issued in the initial public offering,
together with all amendments thereto.
Section 4.17 Liabilities. "Liabilities" means all debts, liabilities,
guarantees, assurances, commitments and obligations, whether fixed, contingent
or absolute, asserted or unasserted, matured or unmatured, liquidated or
unliquidated, accrued or not accrued, known or unknown, due or to become due,
whenever or however arising (including, without limitation, whether arising out
of any Contract or tort based on negligence or strict liability) and whether or
not the same would be required by generally accepted principles and accounting
policies to be reflected in financial statements or disclosed in the notes
thereto.
Section 4.18 OFLs. "OFLs" mean all liabilities, obligations, contingencies,
instruments and other Liabilities of any member of the MRV Group of a financial
nature with third parties existing on the date hereof or entered into or
established between the date hereof and the Separation Date, including any of
the following:
(a) foreign exchange contracts;
(b) letters of credit;
(c) guarantees of third party loans to customers;
(d) surety bonds (excluding surety for workers' compensation
self-insurance);
(e) interest support agreements on third party loans to customers;
(f) performance bonds or guarantees issued by third parties;
(g) swaps or other derivatives contracts; and
(h) recourse arrangements on the sale of receivables or notes.
Section 4.19 Luminent Balance Sheet. "Luminent Balance Sheet" means the audited
consolidated balance sheet (including the notes thereto) of the Luminent
Business as of June 30, 2000, that is included in the IPO Registration
Statement.
13
18
Section 4.20 Luminent Business. "Luminent Business" means the business and
operations of the business of Luminent as described in the IPO Registration
Statement and, except as otherwise expressly provided herein, any terminated,
divested or discontinued businesses or operations that at the time of
termination, divestiture or discontinuation primarily related to the Luminent
Business as then conducted.
Section 4.21 Luminent Contingent Gain. "Luminent Contingent Gain" means any
claim or other right of a member of the MRV Group or the Luminent Group that
primarily relates to the Luminent Business, whenever arising, against any Person
other than a member of the MRV Group or the Luminent Group, if and to the extent
that (a) such claim or right arises out of the events, acts or omissions
occurring as of the Separation Date (based on then existing law) and (b) the
existence or scope of the obligation of such other Person as of the Separation
Date was not acknowledged, fixed or determined in any material respect, due to a
dispute or other uncertainty as of the Separation Date or as a result of the
failure of such claim or other right to have been discovered or asserted as of
the Separation Date. A claim or right meeting the foregoing definition shall be
considered a Luminent Contingent Gain regardless of whether there was any Action
pending, threatened or contemplated as of the Separation Date with respect
thereto. In the case of any claim or right a portion of which arises out of
events, acts or omissions occurring prior to the Separation Date and a portion
of which arises out of events, acts or omissions occurring on or after the
Separation Date, only that portion that arises out of events, acts or omissions
occurring prior to the Separation Date shall be considered a Luminent Contingent
Gain. For purposes of the foregoing, a claim or right shall be deemed to have
accrued as of the Separation Date if all the elements of the claim necessary for
its assertion shall have occurred on or prior to the Separation Date, such that
the claim or right, were it asserted in an Action on or prior to the Separation
Date, would not be dismissed by a court on ripeness or similar grounds.
Notwithstanding the foregoing, none of (i) any Insurance Proceeds, (ii) any
Excluded Assets, (iii) any reversal of any litigation or other reserve, or (iv)
any matters relating to Taxes (which are governed by the Tax Sharing Agreement)
shall be deemed to be a Luminent Contingent Gain.
Section 4.22 Luminent Contingent Liability. "Luminent Contingent Liability"
means any Liability, other than Liabilities for Taxes (which are governed by the
Tax Sharing Agreement), of a member of the MRV Group or the Luminent Group that
primarily relates to the Luminent Business, whenever arising, to any Person
other than a member of the MRV Group or the Luminent Group, if and to the extent
that (a) such Liability arises out of the events, acts or omissions occurring as
of the Separation Date and (b) the existence or scope of the obligation of a
member of the MRV Group or the Luminent Group as of the Separation Date with
respect to such Liability was not acknowledged, fixed or determined in any
material respect, due to a dispute or other uncertainty as of the Separation
Date or as a result of the failure of such Liability to have been discovered or
asserted as of the Separation Date (it being understood that the existence of a
litigation or other reserve with respect to any Liability shall not be
sufficient for such Liability to be considered acknowledged, fixed or
determined). In the case of any Liability a portion of which arises out of
events, acts or omissions occurring prior to the Separation Date and a portion
of which arises out of events, acts or omissions occurring on or after the
Separation Date, only that portion that arises out of events, acts or omissions
occurring prior to the Separation Date shall be considered a Luminent Contingent
Liability. For purposes of the foregoing, a Liability shall be deemed to have
arisen out of events, acts or omissions occurring
14
19
prior to the Separation Date if all the elements necessary for the assertion of
a claim with respect to such Liability shall have occurred on or prior to the
Separation Date, such that the claim, were it asserted in an Action on or prior
to the Separation Date, would not be dismissed by a court on ripeness or similar
grounds. For purposes of clarification of the foregoing, the parties agree that
no Liability relating to, arising out of or resulting from any obligation of any
Person to perform the executory portion of any contract or agreement existing as
of the Separation Date, or to satisfy any obligation accrued under any Plan (as
defined in the Employee Matters Agreement) as of the Separation Date, shall
deemed to be a Luminent Contingent Liability.
Section 4.23 Luminent Contracts. "Luminent Contracts" means the following
contracts and agreements to which MRV is a party or by which it or any of its
Assets is bound, whether or not in writing, except for any such contract or
agreement that is contemplated to be retained by MRV or any member of the MRV
Group pursuant to any provision of this Agreement or any other Ancillary
Agreement:
(a) any contract or agreement entered into in the name of, or expressly
on behalf of, any division or business unit of Luminent;
(b) any contract or agreement that relates primarily to the Luminent
Business;
(c) any contract or agreement that is otherwise expressly contemplated
pursuant to this Agreement, the Separation Agreement or any of the other
Ancillary Agreements to be assigned to Luminent;
(d) any guarantee, indemnity, representation, warranty or other
Liability of any member of the Luminent Group or the MRV Group in respect of any
other Luminent Contract, any Luminent Liability or the Luminent Business
(including guarantees of financing incurred by customers or other third parties
in connection with purchases of products or services from the Luminent
Business); and
(e) any Luminent OFL.
Section 4.24 Luminent Group. Luminent Group" means Luminent, each Subsidiary and
Affiliated Company of Luminent immediately after the Separation Date or that is
contemplated to be a Subsidiary or Affiliated Company of Luminent and each
Person that becomes a Subsidiary or Affiliate Company of Luminent after the
Separation Date.
Section 4.25 Luminent Pro Forma Balance Sheet. "Luminent Pro Forma Balance
Sheet" means the unaudited pro forma condensed consolidated balance sheet
appearing in the IPO Registration Statement.
Section 4.26 Person. "Person" means an individual, a partnership, a corporation,
a limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
Section 4.27 Retained Payables. "Retained Payables" means (a) all accounts
payable and other obligations of payment for goods or services purchased, leased
or otherwise received in the conduct of the Luminent Business that as of the
Separation Date are payable to a third Person by MRV or any of MRV's
Subsidiaries, whether past due, due or to become due, including any interest,
sales or use taxes, finance charges, late or returned check charges and other
obligations of MRV or any of MRV's Subsidiaries with respect thereto, and any
obligations related to any of
15
20
the foregoing and (b) all employee compensation Liabilities and other
miscellaneous Liabilities for which an adjustment is made in the Luminent Pro
Forma Balance Sheet.
Section 4.28 Retained Receivables. "Retained Receivables" means (a) all accounts
receivable and other rights to payment for goods or services sold, leased or
otherwise provided in the conduct of the Luminent Business that as of the
Separation Date are payable by a third Person to MRV or any of MRV's
Subsidiaries, whether past due, due or to become due, including any interest,
sales or use taxes, finance charges, late or returned check charges and other
obligations of the account debtor with respect thereto, and any proceeds of any
of the foregoing and (b) all other miscellaneous Assets for which an adjustment
is made in the Luminent Pro Forma Balance Sheet.
Section 4.29 Security Interest. "Security Interest" means any mortgage, security
interest, pledge, lien, charge, claim, option, right to acquire, voting or other
restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
Section 4.30 Separation. "Separation" means the transfer and contribution from
MRV to Luminent, and Luminent's receipt and assumption of, directly or
indirectly, substantially all of the Assets and Liabilities currently associated
with the Luminent Business and the stock, investments or similar interests
currently held by MRV in subsidiaries and other entities that conduct such
business.
Section 4.31 Separation Agreement. "Separation Agreement" means the Master
Separation and Distribution Agreement dated as of July ___, 2000, of which this
is an Exhibit thereto.
Section 4.32 Separation Date. "Separation Date" means the effective date and
time of each transfer of property, assumption of liability, license,
undertaking, or agreement in connection with the Separation, which shall be
12:01 a.m., Pacific Time, _____________, 2000, or such date as may be fixed by
the Board of Directors of MRV.
Section 4.33 Subsidiary. "Subsidiary" of any Person means any corporation or
other organization whether incorporated or unincorporated of which at least a
majority of the securities or interest having by the terms thereof ordinary
voting power to elect at least a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such Person or by
any one or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries; provided, however that no Person that is not directly or
indirectly wholly owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person.
Section 4.34 Taxes. "Taxes" has the meaning set forth in the Tax Sharing
Agreement.
16
21
IN WITNESS WHEREOF, each of the parties has caused this General
Assignment and Assumption Agreement to be executed on its behalf by its officers
thereunto duly authorized on the day and year first above written.
MRV COMMUNICATIONS, INC.
By:
--------------------------------
Xxxx Xxxxx,
Chief Executive Officer
LUMINENT, INC.
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Chief Executive Officer
-----------------------------------
17
22
SCHEDULES
Schedule 1.1(c) Delayed Transfer Assets and Liabilities
Schedule 1.2(a)(xii) Specific Luminent Assets to be Transferred
Schedule 1.2(b)(i) Excluded Assets
Schedule 1.3(a)(vi) Divested Businesses Which Contain Liabilities to be
Transferred to Luminent
Schedule 1.3(a)(vii) Specific Luminent Liabilities
Schedule 1.3(b)(i) Excluded Liabilities
18
23
SCHEDULE 1.1(c) DELAYED TRANSFER ASSETS AND LIABILITIES
19
24
SCHEDULE 1.2(a)(xii) SPECIFIC LUMINENT ASSETS TO BE TRANSFERRED
20
25
SCHEDULE 1.2(b)(i) EXCLUDED ASSETS
21
26
SCHEDULE 1.3(a)(vi) DIVESTED BUSINESSES WHICH CONTAIN LIABILITIES
TO BE TRANSFERRED TO LUMINENT
22
27
SCHEDULE 1.3(a)(vii) SPECIFIC LUMINENT LIABILITIES
23
28
SCHEDULE 1.3(b)(i) EXCLUDED LIABILITIES
24
